NEBLETT v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CHERYL NEBLETT, )

)

Plaintiff, )

)

v. ) 1:21CV267

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social )

Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Cheryl Neblett, brought this action pursuant to the

Social Security Act (the “Act”) to obtain judicial review of a

final decision of Defendant, the Acting Commissioner of Social

Security, denying Plaintiff’s claims for Disability Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket

Entry 1.) Defendant has filed the certified administrative record

(Docket Entry 8 (cited herein as “Tr. __”)), and both parties have

moved for judgment (Docket Entries 11, 13; see also Docket Entry 12

(Plaintiff’s Memorandum); Docket Entry 14 (Defendant’s

Memorandum)). For the reasons that follow, the Court should enter

judgment for Defendant.

1 President Joseph R. Biden, Jr., appointed Kilolo Kijakazi as the Acting

Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the

Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for

Andrew M. Saul as the Defendant in this suit. Neither the Court nor the parties

need take any further action to continue this suit by reason of the last sentence

of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

I. PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI (Tr. 165-67, 266-77),

alleging a disability onset date of February 7, 2018 (see Tr. 165,

266, 271). Upon denial of those applications initially (Tr. 117-

38, 172-91) and on reconsideration (Tr. 139-64, 192-97, 424-36),

Plaintiff requested a hearing de novo before an Administrative Law

Judge (“ALJ”) (Tr. 199-201). Plaintiff, her attorney, and a

vocational expert (“VE”) attended the hearing. (Tr. 78-116.) The

ALJ subsequently ruled that Plaintiff did not qualify as disabled

under the Act. (Tr. 49-59.) The Appeals Council thereafter denied

Plaintiff’s request for review (Tr. 37-42, 262-63), thereby making

the ALJ’s ruling the Commissioner’s final decision for purposes of

judicial review.

In rendering that disability determination, the ALJ made the

following findings later adopted by the Commissioner:

1. [Plaintiff] meets the insured status requirements of

the [] Act through June 30, 2022.

2. [Plaintiff] has not engaged in substantial gainful

activity since February 7, 2018, the alleged onset date.

3. [Plaintiff] has the following severe impairments:

degenerative disc disease of the lumbar spine and

obesity.

. . .

4. [Plaintiff] does not have an impairment or

combination of impairments that meets or medically equals

the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1.

. . .

2

5. . . . [Plaintiff] has the residual functional

capacity to perform light work . . . except she can never

climb ladders, ropes, or scaffolds; and can climb stairs

and ramps, stoop, kneel, crouch, and crawl occasionally.

She can push and[/]or pull consistent with the weights

associated with light work.

. . .

6. [Plaintiff] is capable of performing past relevant

work as a storage facility clerk and customer service

representative. This work does not require the

performance of work-related activities precluded by [her]

residual functional capacity.

. . .

7. [Plaintiff] has not been under a disability, as

defined in the [] Act, from February 7, 2018, through the

date of this decision.

(Tr. 55-59 (bold font and internal parenthetical citations

omitted).)

II. DISCUSSION

Federal law “authorizes judicial review of the Social Security

Commissioner’s denial of social security benefits.” Hines v.

Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the scope

of [the Court’s] review of [such a] decision . . . is extremely

limited.” Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).

Plaintiff has not established entitlement to relief under the

extremely limited review standard.

A. Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”

Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead,

the Court “must uphold the factual findings of the ALJ if they are

3

supported by substantial evidence and were reached through

application of the correct legal standard.” Hines, 453 F.3d at 561

(internal brackets and quotation marks omitted). “Substantial

evidence means ‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’” Hunter v. Sullivan,

993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales, 402

U.S. 389, 401 (1971)). “It consists of more than a mere scintilla

of evidence but may be somewhat less than a preponderance.” Mastro

v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (brackets and internal

quotation marks omitted). “If there is evidence to justify a

refusal to direct a verdict were the case before a jury, then there

is substantial evidence.” Hunter, 993 F.2d at 34 (internal

quotation marks omitted).

“In reviewing for substantial evidence, the [C]ourt should not

undertake to re-weigh conflicting evidence, make credibility

determinations, or substitute its judgment for that of the [ALJ, as

adopted by the Commissioner].” Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence

allows reasonable minds to differ as to whether a claimant is

disabled, the responsibility for that decision falls on the

[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks

omitted). “The issue before [the Court], therefore, is not whether

[the claimant] is disabled, but whether the ALJ’s finding that [the

claimant] is not disabled is supported by substantial evidence and

4

was reached based upon a correct application of the relevant law.”

Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).

When confronting that issue, the Court must take note that

“[a] claimant for disability benefits bears the burden of proving

a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),

and that, in this context, “disability” means the “‘inability to

engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be expected

to last for a continuous period of not less than 12 months,’” id.

(quoting 42 U.S.C. § 423(d)(1)(A)).2 “To regularize the

adjudicative process, the Social Security Administration [(‘SSA’)]

has . . . detailed regulations incorporating longstanding medical-

vocational evaluation policies that take into account a claimant’s

age, education, and work experience in addition to [the claimant’s]

medical condition.” Id. “These regulations establish a

‘sequential evaluation process’ to determine whether a claimant is

disabled.” Id.

This sequential evaluation process (“SEP”) has up to five

steps: “The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a

2 The Act “comprises two disability benefits programs. [DIB] provides benefits

to disabled persons who have contributed to the program while employed. [SSI]

provides benefits to indigent disabled persons. The statutory definitions and

the regulations . . . for determining disability governing these two programs

are, in all aspects relevant here, substantively identical.” Craig, 76 F.3d at

589 n.1 (internal citations omitted).

5

‘severe’ impairment that (3) meets or exceeds the ‘listings’ of

specified impairments, or is otherwise incapacitating to the extent

that the claimant does not possess the residual functional capacity

to (4) perform [the claimant’s] past work or (5) any other work.”

Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475

n.2 (4th Cir. 1999).3 A finding adverse to the claimant at any of

several points in the SEP forecloses an award and ends the inquiry.

For example, “[t]he first step determines whether the claimant is

engaged in ‘substantial gainful activity.’ If the claimant is

working, benefits are denied. The second step determines if the

claimant is ‘severely’ disabled. If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).

On the other hand, if a claimant carries his or her burden at

each of the first three steps, “the claimant is disabled.” Mastro,

270 F.3d at 177. Alternatively, if a claimant clears steps one and

two, but falters at step three, i.e., “[i]f a claimant’s impairment

is not sufficiently severe to equal or exceed a listed impairment,

the ALJ must assess the claimant’s residual functional capacity

(‘RFC’).” Id. at 179.4 Step four then requires the ALJ to assess

3 “Through the fourth step, the burden of production and proof is on the

claimant. If the claimant reaches step five, the burden shifts to the

[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

4 “RFC is a measurement of the most a claimant can do despite [the claimant’s]

limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations

require RFC to reflect claimant’s “ability to do sustained work-related physical

and mental activities in a work setting on a regular and continuing basis . . .

[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”

(internal emphasis and quotation marks omitted)). The RFC includes both a

(continued...)

6

whether, based on that RFC, the claimant can perform past relevant

work; if so, the claimant does not qualify as disabled. See id. at

179-80. However, if the claimant establishes an inability to

return to prior work, the analysis proceeds to the fifth step,

whereupon the ALJ must decide “whether the claimant is able to

perform other work considering both [the claimant’s RFC] and [the

claimant’s] vocational capabilities (age, education, and past work

experience) to adjust to a new job.” Hall, 658 F.2d at 264-65.

If, at this step, the Commissioner cannot carry its “evidentiary

burden of proving that [the claimant] remains able to work other

jobs available in the community,” the claimant qualifies as

disabled. Hines, 453 F.3d at 567.5

B. Assignments of Error

Plaintiff asserts that the Court should overturn the ALJ’s

finding of no disability on these grounds:

4 (...continued)

“physical exertional or strength limitation” that assesses the claimant’s

“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as

“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658

F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers

all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,

pain).” Hines, 453 F.3d at 562-63.

5 A claimant thus can establish disability via two paths through the SEP. The

first path requires resolution of the questions at steps one, two, and three in

the claimant’s favor, whereas, on the second path, the claimant must prevail at

steps one, two, four, and five. Some short-hand judicial characterizations of

the SEP appear to gloss over the fact that an adverse finding against a claimant

on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at

35 (“If the ALJ finds that a claimant has not satisfied any step of the process,

review does not proceed to the next step.”).

7

1) “the ALJ’s [RFC] assessment is unsupported by substantial

evidence and frustrates meaningful review” (Docket Entry 12 at 5

(bold font and single-spacing omitted)); and

2) “[t]he ALJ erred by discrediting [Plaintiff]’s symptoms

pursuant to an incorrect legal standard and improperly increased

her burden of proof” (id. at 13 (bold font and single-spacing

omitted)).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (Docket Entry 14 at 5-15.)

1. RFC

Plaintiff’s first issue on review maintains that “the ALJ’s

[RFC] assessment is unsupported by substantial evidence and

frustrates meaningful review.” (Docket Entry 12 at 5 (bold font

and single-spacing omitted).) In particular, Plaintiff argues that

the ALJ 1) “erred [under Dowling v. Commissioner of Soc. Sec.

Admin., 986 F.3d 377, 387-88 (4th Cir. 2021)] by assessing

[Plaintiff]’s RFC pursuant to an incorrect framework and without

explaining the related findings in the manner required by Social

Security Regulations” (Docket Entry 12 at 6 (bold font and single-

spacing omitted)), 2) “failed to adequately explain his evaluation

of the medical opinions” (id. at 8 (bold font and single-spacing

omitted)), and 3) “erred by expressing [Plaintiff]’s RFC first and

only then concluding that the limitations caused by her impairments

were consistent with that RFC” and “failed to assess [Plaintiff]’s

8

capacity to perform relevant functions, despite contradictory

evidence in the record,” both in violation of Monroe v. Colvin, 826

F.3d 176 (4th Cir. 2016) (Docket Entry 12 at 10 (bold font and

single-spacing omitted)). For the reasons explained more fully

below, none of those challenges carries the day.

a. Error under Dowling

Plaintiff first asserts that “[t]he ALJ erred [under Dowling]

by assessing [Plaintiff]’s RFC pursuant to an incorrect framework

and without explaining the related findings in the manner required

by Social Security Regulations.” (Docket Entry 12 at 6 (bold font

and single-spacing omitted).) According to Plaintiff, the Dowling

court “held[ that] ‘the ALJ relied on an incorrect regulatory

framework when he assessed [the claimant]’s RFC,’” because he

neither “‘cite[d] to 20 C.F.R. §$ 416.945’” nor “‘*to [Social

Security Ruling 96-8p, Policy Interpretation Ruling Titles II and

XVI: Assessing Residual Functional Capacity in Initial Claims, 1996

WL 374184 (July 2, 1996) (“SSR 96-8p”),] and the ‘ALJ’s RFC

determination was based entirely on [Social Security Ruling 96-7p,

Policy Interpretation Ruling Titles II and XVI: Evaluation of

Symptoms in Disability Claims: Assessing the Credibility of an

Individual’s Statements, 1996 WL 374186 (July 2, 1996) (“SSR 96-

7p”) and [Social Security Ruling 16-3p, Evaluation of Symptoms in

Disability Claims, 2017 WL 5180304 (Oct. 25, 2017) (“SSR 16-

],’" which rulings “‘set out the process ALJs use to evaluate

the intensity and persistence of [a claimant’s] symptoms.’”

(Docket Entry 12 at 6 (quoting Dowling, 986 F.3d at 387) (internal

quotation marks omitted).) Plaintiff notes that the court in

Dowling found that, because “‘an RFC assessment is a separate and

distinct inquiry from a symptom evaluation, [] the ALJ erred

treating them as one and the same.’” (Id. at 7 (quoting Dowling,

986 F.3d at 387).) Plaintiff maintains that, “just like the ALJ in

Dowling, the ALJ in this case also based her [sic] RFC

determination on SSR 16-3p and failed to cite to 20 C.F.R.

§ 416.945 or SSR 96-8p.” (Id. (citing Tr. 57).) For the reasons

explained below, Plaintiff’s arguments fail as a matter of law.

Contrary to Plaintiff’s arguments, the ALJ here did cite to

the correct standards governing the assessment of RFC. Although

Plaintiff focuses on one page of the ALJ’s decision to assert that

the ALJ failed to cite the proper standards (see id. at 7 (citing

Tr. 57)), Plaintiff ignores the following recitation by the ALJ of

the appropriate standards:

Before considering step four of the [SEP], the [ALJ] must

first determine [Plaintiff]’s [RFC] (20 CFR 404.1520(e)

and 416.920(e)). An individual’s [RFC] is her ability to

do physical and mental work activities on a sustained

basis despite limitations from her impairments. In

making this finding, the [ALJ] must consider all of

[Plaintiff]’s impairments, including impairments that are

not severe (20 CFR 404.1520(e), 404.1545, 416.920(e), and

416.945; SSR 96-8p).

(Tr. 54 (emphasis added).) Moreover, “the ALJ went beyond his

findings relating to Plaintiff’s subjective complaints . . . [and]

10

specifically relied on the findings of the [s]tate agency

consultants in assessing Plaintiff’s RFC,” Key v. Kijakazi, No.

1:20CV552, 2021 WL 3887616, at *7 (M.D.N.C. Aug. 31, 2021) (Peake,

M.J.), recommendation adopted, slip op. (M.D.N.C. Sept. 24, 2021)

(Osteen, J.).

Simply put, the ALJ did not err under Dowling.

b. Evaluation of Opinion Evidence

Plaintiff next faults the ALJ for failing to provide a

“logical explanation” for finding “‘the opinion by [the initial-

level state agency medical consultant ] not consistent with the

evidence as a whole and [the reconsideration-level state agency

medical consultant]’s conclusions [] persuasive’” (Docket Entry 12

at 9 (quoting Tr. 58)), noting that “[t]he Fourth Circuit has

repeatedly held that an ALJ’s conclusions must be adequately

explained and [that] decisions lacking logical explanations

frustrate meaningful review” (id. (citing Thomas v. Berryhill, 916

F.3d 307, 311 (4th Cir. 2019), Patterson v. Commissioner of Soc.

Sec. Admin., 846 F.3d 656, 663 (4th Cir. 2017), and Mascio v.

Colvin, 780 F.3d 632, 637-40 (4th Cir. 2015))). In addition,

Plaintiff posits that “[t]he ALJ’s failure to explain how he

considered the medical opinions [of consultative medical examiner

Dr. Stephen Burgess] in evaluating [Plaintiff]’s RFC frustrates

meaningful review.” (Id. at 10 (citing Tr. 58, 420, 423).)

Plaintiff’s contentions ultimately fail to warrant relief.

11

For benefits applications filed on or after March 27, 2017

(such as Plaintiff’s (see Tr. 165-67, 266-77)), the SSA has enacted

substantial revisions to the regulations governing the evaluation

of opinion evidence. See Revisions to Rules Regarding the

Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 2017 WL

168819 (Jan. 18, 2017). Under the new regulations, ALJs are no

longer required to assign an evidentiary weight to medical opinions

or to accord special deference to treating source opinions. See 20

C.F.R. §§ 404.1520c(a), 416.920c(a) (providing that ALJs “will not

defer or give any specific evidentiary weight, including

controlling weight, to any medical opinion(s) or prior

administrative medical finding(s), including those from [a

claimant’s] medical sources”). Instead, an ALJ must determine and

“articulate in [the] . . . decision how persuasive [he or she]

find[s] all of the medical opinions and all of the prior

administrative medical findings in [a claimant’s] case record.” 20

C.F.R. §§ 404.1520c(b), 416.920c(b) (emphasis added). In

evaluating the persuasiveness of an opinion or finding, the SSA

deems supportability and consistency “the most important factors”

and thus the ALJ must address those two factors in evaluating the

persuasiveness of an opinion or a finding. 20 C.F.R.

§§ 404.1520c(b)(2), 416.920c(b)(2). The ALJ must address the three

other persuasiveness factors — the nature and extent of the medical

source’s relationship with the claimant and area of specialization,

12

as well as the catch-all “other factors that tend to support or

contradict” the opinion/finding, 20 C.F.R. §§ 404.1520c(c)(3)-(5),

416.920c(c)(3)-(5) — only when the ALJ finds two or more opinions

or findings about the same issue “[e]qually persuasive” in terms of

supportability and consistency, 20 C.F.R. §§ 404.1520c(b)(3),

416.920c(b)(3).

The state agency medical consultants each opined that

Plaintiff remained capable of medium exertion work (lifting,

carrying, pushing, and pulling 50 pounds occasionally and 25 pounds

frequently, see 20 C.F.R. §§ 404.1567(c), 416.967(c)), with

occasional climbing of ladders, ropes, and scaffolds, and frequent

climbing of ramps and stairs, kneeling, crouching, and crawling.

(See Tr. 122-23, 133, 145-46, 156-57.) The two consultants’

opinions differed in that the initial-level consultant “expedited,”

i.e., bypassed, a finding about Plaintiff’s ability to perform her

past relevant work (“PRW”) at step four of the SEP (Tr. 124, 135),

and proceeded to find, at step five, that she could perform three

inspecting jobs available in significant numbers in the national

economy (see Tr. 125, 136), whereas the reconsideration-level

consultant specifically found that Plaintiff retained the RFC to

perform her PRW as a customer service representative (see Tr. 148,

159).

The ALJ here provided the following analysis of the state

agency medical consultants’ opinions:

13

The [ALJ] has fully considered the medical opinions and

prior administrative medical findings as follows: [the

initial-level state agency medical consultant] examined

the records at the initial level and concluded that

[Plaintiff]’s impairments resulted in limiting her to

medium exertion, with additional limitation to no more

than occasionally climbing ladders, ropes, and scaffolds;

frequently climbing stairs or ramps, kneeling, crouching,

and crawling. [The reconsideration-level state agency

medical consultant] examined [Plaintiff]’s records at the

reconsideration level and concluded that [she] could

return to her past relevant work as a customer service

representative. The [ALJ] finds that the opinion by [the

initial-level consultant] is not consistent with the

evidence as a whole and [the reconsideration-level

consultant]’s conclusions are persuasive.

(Tr. 58 (emphasis added) (internal parenthetical citations

omitted).) Contrary to Plaintiff’s allegations (see Docket Entry

12 at 9), the Court can meaningfully review the ALJ’s

decisionmaking with regard to the consultants’ opinions.

At first blush, the ALJ’s decision to find only the

reconsideration-level consultant’s opinion persuasive would appear

to conflict with the fact that both consultants proffered

identical, medium-exertion RFCs (compare Tr. 122-23, 133, with Tr.

145-46, 156-57). Further comparison of the two consultants’

opinions, however, elucidates the ALJ’s reasoning. Although not

well-worded, the ALJ clearly meant to indicate that he did not find

either consultant’s opinion that Plaintiff remained able to perform

medium work persuasive, because that finding conflicted with the

evidence as a whole. The ALJ’s adoption of a light-exertion RFC

supports that interpretation. (See Tr. 57.) The ALJ then

specifically credited only the reconsideration-level consultant’s

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finding that Plaintiff could still perform her (lower exertion

level) PRW as a customer service representative (see Tr. 58

(referencing Tr. 148, 159)), because, as discussed above, the

initial level consultant “expedited,” i.e., bypassed, the PRW

finding and proceeded to find other jobs Plaintiff could perform at

step five (see Tr. 125, 136). Moreover, although the ALJ did

not detail the evidence that conflicted with the consultants’

medium-exertion RFC opinions in the same paragraph in which the ALJ

discussed their persuasiveness (see Tr. 58), the ALJ’s earlier

discussion of the medical evidence permits the Court to

meaningfully review his evaluation, see McCartney v. Apfel, 28 F.

App’x 277, 279-80 (4th Cir. 2002) (rejecting challenge to ALJ’s

finding for lack of sufficient detail where other discussion in

decision adequately supported finding and stating “that the ALJ

need only review medical evidence once in his decision”); Kiernan

v. Astrue, No. 3:12CV459, 2013 WL 2323125, at *5 (E.D. Va. May 28,

2013) (unpublished) (observing that, where an “ALJ analyzes a

claimant’s medical evidence in one part of his decision, there is

no requirement that he rehash that discussion” in other parts of

his analysis). Earlier in the ALJ’s decision, he discussed

evidence, including Plaintiff’s hearing testimony, that post-dated

the consultants’ opinions and supported greater restrictions in the

RFC. (See Tr. 56-58.) Examples of that contrasting evidence

include the following:

15

° although Plaintiff stated on “a Function Report

dated October 15, 2018,” that “she use[d] a can[e]

only when her back and legs [we]re ‘very painful’”

(Tr. 58 (emphasis added) (quoting Tr. 316)), she

testified at the hearing that “[s]he began using a

cane when she walk[ed] because the back pain

radiate[d] into her legs and ma[de] them numb” (Tr.

57 (emphasis added) (referencing Tr. 85); see also

Tr. 89 (reflecting Plaintiff’s testimony that she

used a cane even when standing because of right-

sided weakness)); and

° “[Tl]lumbar spine x-rays [dated November 6, 2017, ]

revealed “no acute abnormality or compression other

than mild dextroconvex lumbar scoliosis and some

degenerative changes” (Tr. 56 (citing Tr. 401)),

but lumbar “x-rays taken April 27, 2020, [ ]

revealed mild scoliosis, multilevel degenerative

disc disease and facet arthropathy with some

narrowing of the L4-5 and L5-S1 disc spaces” (Tr.

57 (referencing Tr. 452)).

The progression of Plaintiff’s reported need to use a cane from

only at times of heightened pain to at all times when on her feet

and the radiographic evidence of interval worsening of her lumbar

degenerative disc disease from November 2017 to April 2020 support

the ALJ’s decision not to credit the consultants’ medium-exertion

RFC (see Tr. 58) and, instead, to adopt a light-exertion RFC with

greater postural restrictions (compare Tr. 57, with Tr. 122-23,

133, 145-46, 156-57).°

Plaintiff additionally contends that “[t]he ALJ’s failure to

explain how he considered [Dr. Burgess’s] medical opinions in

6 Although the ALJ did not include Plaintiff’s reported need for a cane in the

RFC (see Tr. 57), the VE testified that the need to use a cane at all times when

on one’s feet would not preclude Plaintiff from performing her PRW as a customer

service representative (see Tr. 112-13). Notably, Plaintiff did not allege error

arising out of the ALJ’s omission of the need for a cane in the RFC. (See Docket

Entry 12.)

16

evaluating [Plaintiff]’s RFC frustrates meaningful review.”

(Docket Entry 12 at 10 (citing Tr. 58, 420, 423).) Although the

ALJ discussed Dr. Burgess’s findings and opinions in a fair amount

of detail in the context of the ALJ’s analysis of whether

Plaintiff’s impairments met or equaled the requirements of any

listings at step three of the SEP (see Tr. 56), the ALJ did not

specifically make a finding as to the persuasiveness of those

opinions (see Tr. 58). That omission violates the Commissioner’s

regulations governing the evaluation of opinion evidence, which

require the ALJ to “articulate in [the] . . . decision how

persuasive [he] find[s] all of the medical opinions . . . in

[Plaintiff’s] case record,” 20 C.F.R. $§ 404.1520c(b), 416.920c (b)

(emphasis added); however, for the reasons discussed below, that

error by the ALJ remains harmless under the facts of this case, see

generally Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)

(observing that “[n]o principle of administrative law or common

sense requires us to remand a case in quest of a perfect opinion

unless there is reason to believe that the remand might lead to a

different result”).

Dr. Burgess conducted a consultative medical examination of

Plaintiff on November 28, 2018 (see Tr. 419-23), and found “mild”

tenderness in Plaintiff’s cervical and lumbar spines (see Tr. 421-

22 (emphasis added)), “some” tenderness over her sacroiliac joints

(Tr. 422 (emphasis added)), decreased hip flexion (see id.),

17

reduced cervical flexion and extension (see Tr. 421), an

“equivocal” supine straight leg test (Tr. 422 (emphasis added)),

and crepitus in Plaintiff’s knees, left greater than right (see Tr.

421), while also noting that Plaintiff could “not fully squat

without assistance” (Tr. 422 (emphasis added)). On the other hand,

Dr. Burgess recorded a normal gait without a handheld assistive

device (see Tr. 420), normal heel and toe walk and tandem gait (see

Tr. 422), no edema (see Tr. 421), no spasm or trigger points

(see Tr. 421-22), full strength including Plaintiff’s grip (see Tr.

422), a negative seated straight leg raise test (see id.), and

normal sensation, coordination, and reflexes (see id.). As a

result of those findings, Dr. Burgess opined that Plaintiff’s

“ability to perform work-related activities such as bending,

stooping, lifting, walking, crawling, squatting, carrying,

traveling, pushing and pulling heavy objects, as well as the

ability to hear or speak, appear [ed] to be mildly and

intermittently more moderately impaired.” (Tr. 423 (emphasis

added) .)’

Plaintiff has not explained how the ALJ’s light-exertion RFC

with additional postural restrictions (see Tr. 57) conflicts with

Dr. Burgess’s mild-to-moderate limitations (see Docket Entry 12 at

’ Dr. Burgess’s report does not explain why he rated Plaintiff’s abilities to

hear and speak as “mildly and intermittently more moderately impaired” (Tr. 423),

especially given the lack of findings regarding Plaintiff’s speech (see Tr. 420-

22) and Dr. Burgess’s earlier finding that Plaintiff’s “hearing appear[ed] to be

adequate for normal conversation” (Tr. 420).

18

10). Thus, remand for an express evaluation by the ALJ of the

persuasiveness of Dr. Burgess’s opinions would serve no purpose, as

Plaintiff simply has not shown that the ALJ’s full adoption of Dr.

Burgess’s opinions would have changed the RFC in any material way

and/or resulted in a more favorable outcome in her claims.®

Cc. Error under Monroe

Plaintiff’s third and final complaint regarding the ALJ’s RFC

contends that he 1) “erred by expressing [Plaintiff]’s RFC first

and only then concluding that the limitations caused by her

impairments were consistent with that RFC,” and 2) “failed to

assess [Plaintiff]’s capacity to perform relevant functions,

despite contradictory evidence in the record,” both in violation of

Monroe. (Docket Entry 12 at 11 (citing Monroe, 826 F.3d at 188);

see _ also id. at 11-12 (detailing evidence Plaintiff believes

contradicts RFC (citing Tr. 85-87, 92, 94-95, 398, 401, 404, 408-

09, 420, 423, 441-42, 452)).) In Plaintiff’s view, “[t]he ALJ

failed to adequately explain how [Plaintiff] can perform the

assigned RFC five days per week, eight hours per day despite her

advanced age, severe physical impairments, symptoms, and need for

8 Notably, Dr. Burgess did not place any limitations on Plaintiff’s abilities to

sit or stand. (See Tr. 423.) Moreover, although not argued by Plaintiff

(see Docket Entry 12 at 10), even the ALJ’s full adoption of Dr. Burgess’s mild-

to-moderate limitation on Plaintiff’s ability to walk (see Tr. 423) would not

change the outcome of her claims, as the ALJ found (based on the VE’s testimony

(see Tr. 110-11)) that Plaintiff remained capable of returning to her PRW as a

customer service representative (see Tr. 59), which the VE placed at the

sedentary range of exertion (see Tr. 110).

19

cane.” (Id. at 12 (citing Tr. 57-58).) Plaintiff’s reliance on

Monroe fails on both fronts.

To begin, as a matter of formatting and organizational

structure, ALJs typically express the RFC as a numbered and bolded

heading (as they do all of the findings they make at other steps of

the SEP), and then discuss the evidence that supports that RFC

finding. See Sherah F. v. Berryhill, No. CV 18-1957, 2019 WL

2642833, at *9 (D. Md. June 27, 2019) (unpublished) (“In thle

c]ourt’s experience, ALJs will include their RFC findings in the

heading of the section of their decision discussing a claimant’s

RFC. In the body of the discussion that follows, the ALJs will

then discuss the evidentiary support and reasoning behind their

conclusion. When they do refer to the RFC again in the discussion,

it will usually be in general terms.”). The ALJ’s RFC finding here

conformed to that organizational format. (See Tr. 57.) The Sherah

F. court found “unclear” whether the ALJ’s mere placement of the

RFC in a heading preceding the supporting analysis constituted

“Yexpress[ing the] RFC first’” as prohibited by Monroe and its

progeny. id. (citing Thomas, 916 F.3d at 312, in turn citing

Monroe, 826 F.3d at 188); see also Jordan v. Berryhill, No.

1:16CV951, 2017 WL 8776509, at *8 &@ n.4 (E.D. Va. Nov. 3, 2017)

(unpublished) (assuming arguendo that ALJ’s placement of RFC in

heading constituted expressing RFC first under Monroe, but noting

that “the RFC assessment is bolded and structured as a heading” and

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that, “[a]fter providing the RFC assessment, the ALJ analyzes the

medical evidence .. . [and] then states his findings and refers to

his previously provided RFC assessment” and thus that “it appears

that the ALJ expressing [the p]laintiff’s RFC assessment first was

merely an organizational feature of his decision” and that,

“[Lo]therwise, the ALJ did provide an analysis and then come to a

decision on [the pllaintiff’s RFC” (internal parenthetical

citations omitted)), recommendation adopted, 2018 WL 555716 (E.D.

Va. Jan. 23, 2018) (unpublished).

However, the Court need not resolve that issue because, even

assuming the ALJ here expressed the RFC before the supporting

analysis, unlike in Monroe, the ALJ here did not then find the

evidence “consistent” with that predetermined RFC. (See Tr. 57-

58.) The Monroe decision expressly relied on the Fourth Circuit’s

earlier decision in Mascio, wherein the Fourth Circuit found

erroneous an ALJ’s reliance on the “boilerplate” language that “the

claimant’s statements concerning the intensity, persistence and

limiting effects of his symptoms [we]re not credible to the extent

they [we]re inconsistent with the above [RFC] assessment,” holding

that such language “gets things backwards by implying that” the ALJ

first determined the RFC, and then used the RFC “to determine the

claimant’s credibility.” Mascio, 780 F.3d at 639 (emphasis added).

The ALJ here, however, did not use that forbidden language in

assessing Plaintiff’s subjective symptom reporting (see Tr. 58

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(finding that Plaintiff’s “statements concerning the intensity,

persistence and limiting effects of [her] symptoms [we]re not

entirely consistent with the medical evidence and other evidence in

the record for the reasons explained in th[e] decision” (emphasis

added))) and thus Plaintiff has not demonstrated error under Monroe

in that regard, see Linares v. Colvin, No. 14-120, 2015 WL 4389533,

at 86 (W.D.N.C. July 17, 2015) (unpublished) (finding language

similar to phrasing used by ALJ here “distinguishable from the now

suspect boilerplate language used in Mascio” because “the ALJ’s

language does not suggest that he first assessed [the p]laintiff’s

RFC and used that assessment to determine credibility”).

Plaintiff’s second Monroe-based contention, that the ALJ

“failed to assess [Plaintiff]’s capacity to perform relevant

functions, despite contradictory evidence in the record” (Docket

Entry 12 at 11 (citing Monroe, 826 F.3d at 188)) similarly misses

the mark. Although Plaintiff detailed evidence she believed

contradicted the RFC (see id. at 11-12 (citing Tr. 85-87, 92, 94-

95, 398, 401, 404, 408-09, 420, 423, 441-42, 452)), she neither

identified any “relevant functions” the ALJ failed to consider, nor

explained how remand for further consideration of such functions

would result in a more favorable outcome in her claim (see id.).

That failure precludes relief. See United States v. Zannino, 895

F.2d 1, 17 (list Cir. 1990) (“[A] litigant has an obligation to

spell out its arguments squarely and distinctly, or else forever

22

hold its peace.” (internal quotation marks omitted)); Hughes v. B/E

Aerospace, Inc., No. 1:12CV717, 2014 WL 906220, at *1 n.1 (M.D.N.C.

Mar. 7, 2014) (unpublished) (Schroeder, J.) (“A party should not

expect a court to do the work that it elected not to do.”).

In light of the foregoing analysis, Plaintiff’s first

assignment of error falls short.

2. Evaluation of Subjective Symptoms

In Plaintiff’s second and final assignment of error, she

asserts that “[t]he ALJ erred by discrediting [Plaintiff]’s

symptoms pursuant to an incorrect legal standard and improperly

increased her burden of proof.” (Docket Entry 12 at 13 (bold font

and single-spacing omitted).) More specifically, Plaintiff

contends that “the regulations and Fourth Circuit precedent[

preclude] an ALJ [from] reject[ing] statements about the intensity

and persistence of pain or other symptoms due to a lack of

objective evidence.” (Id. (citing 20 C.F.R. §§ 404.1529(c)(2),

416.929(c)(2), Arakas v. Commissioner of Soc. Sec. Admin., 983 F.3d

83, 97-98 (4th Cir. 2020), Lewis v. Berryhill, 858 F.3d 858, 866

(4th Cir. 2017), Hines, 453 F.3d at 565, Craig, 76 F.3d at 592-93,

and Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989)).) According

to Plaintiff, “the ALJ evaluated [Plaintiff]’s symptoms based on an

incorrect legal standard by requiring objective evidence in

support.” (Id. at 14 (citing Tr. 58).) Plaintiff further notes

that, “other than the ALJ’s unfounded assertion that [Plaintiff]

23

should be able to afford prescription medication and treatment

without health insurance because she smokes cigarettes, the ALJ

failed to explain what statements by [Plaintiff] undercut her

subjective complaints.” (Id. at 15 (citing Tr. 58).) Those

contentions do not warrant relief.

As an initial matter, Plaintiff overstates the reach of the

Fourth Circuit cases upon which she relies by stating that such

“precedent[ precludes] an ALJ [from] reject[ing] statements about

the intensity and persistence of pain or other symptoms due to a

lack of objective evidence.” (Id. at 13 (citing Arakas, 983 F.3d

at 97-98, Lewis, 858 F.3d at 866, Hines, 453 F.3d at 565, Craig, 76

F.3d at 592-93, and Walker, 889 F.2d at 49).) Although Arakas

“reiterate[d] the long-standing law in [the Fourth C]lircuit that

disability claimants are entitled to rely exclusively on subjective

evidence to prove the severity, persistence, and limiting effects

of their symptoms,” Arakas, 983 F.3d at 98, long-standing cases

containing the substance of that holding, such as Craig and Hines

(among others), clarify that, “[a]lthough a claimant’s allegations

about her [symptoms] may not be discredited solely because they are

not substantiated by objective evidence of the [symptoms

themselves] or [their] severity, they need not be accepted to the

extent they are inconsistent with the available evidence, including

objective evidence of the underlying impairment, and the extent to

which that impairment can reasonably be expected to cause the

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[symptoms] the claimant alleges she suffers,” Craig, 76 F.3d at 595

(emphasis added); see also Hines, 453 F.3d at 565 n.3 (quoting

Craig, 76 F.3d at 595). In other words, under the appropriate

circumstances, an ALJ may choose to rely exclusively on a

claimant’s subjective symptom reports to find disabling symptoms;

however, Arakas does not compel ALJs to consider only subjective

evidence, as such a requirement would conflict with the Act itself

and its regulations, both of which plainly require ALJs to consider

a variety of factors, including objective medical evidence, in

evaluating the intensity, persistence, and limiting effects of

symptoms. see 42 U.S.C. § 423(d) (5) (A) (“Objective medical

evidence of pain... established by medically acceptable clinical

or laboratory techniques (for example, deteriorating nerve or

muscle tissue) must be considered in reaching a conclusion as to

whether [an] individual is under a disability.” (emphasis added));

also 20 C.F.R. §§ 404.1529(c) (2), 416.929(c) (2) (“Objective

medical evidence .. . such as .. . reduced joint motion, muscle

spasm, sensory deficit or motor disruption . . . is a useful

indicator to assist [the ALJ] in making reasonable conclusions

about the intensity and persistence of [a claimant’s] symptoms and

the effect those symptoms, such as pain, may have on [his or her]

ability to work. [An ALJ] must always attempt to obtain objective

medical evidence and, when it is obtained, [the ALJ] will consider

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it in reaching a conclusion as to whether [a claimant is]

disabled.” (emphasis added)).

Here, in compliance with the regulations and Fourth Circuit

precedent discussed above, the ALJ considered the objective medical

evidence as one part of his evaluation of the intensity,

persistence, and limiting effects of Plaintiff’s alleged symptoms.

(See Tr. 58 (finding Plaintiff’s “statements concerning the

intensity, persistence and limiting effects of [her] symptoms []

not entirely consistent with the medical evidence and _ other

evidence in the record” (emphasis added)).) As detailed in the

discussion of Plaintiff’s first issue on review, the ALJ

additionally considered the opinion evidence of record (see Tr.

58), and reduced the state agency medical consultants’ RFC

assessments from the medium level of exertion to the light level

and added additional postural restrictions (compare Tr. 57, with

Tr. 122-23, 133, 145-46, 156-57). The ALJ also summarized

Plaintiff’s hearing testimony and statements on a Function Report

in a fair amount of detail (see Tr. 57-58), while additionally

discussing all five of the medical records that exist in the record

(Tr. 56-57), and Plaintiff has not identified additional evidence

or subjects of discussion pertaining to her subjective symptom

reporting that the ALJ omitted from his analysis (see Docket Entry

12 at 12-15). The ALJ ended his discussion of the RFC by stating

that the RFC “[wa]s supported by the evidence of record when

26

considered as a whole” (Tr. 59 (emphasis added)) and thus made

clear that, in the final analysis, he considered the entire record,

and not just the objective medical evidence, in determining

Plaintiff’s RFC.

The ALJ “also noted that, while [Plaintiff] contends she

cannot afford treatment or medications, she does smoke cigarettes

on a regular basis[ which ] indicates she has some discretionary

funds that could be used to purchase medications.” (Tr. 58.)

Although Plaintiff characterized the ALJ’s observation in that

regard as “unfounded” (Docket Entry 12 at 15), she made no further

effort to explain the impropriety of that observation (see id.).

In fact, the record supports the ALJ’s findings both that Plaintiff

alleged an inability to afford treatment and medications (see Tr.

89, 97, 317), and that Plaintiff smoked cigarettes throughout the

relevant period in this case (see Tr. 398 (2017 hospital record

describing Plaintiff as “[c]urrent every day smoker”), 420

(Plaintiff’s 2018 report to Dr. Burgess that she had smoked “less

than a pack a day . . . for 43 years”), 439 & 442 (Plaintiff’s 2019

statements to nurse practitioner that she smoked “5 or less”

cigarettes on “some days, but not every day”)).

Moreover, courts within the Fourth Circuit have long held that

ALJs may permissibly consider a claimant’s purchase of cigarettes

when evaluating an alleged inability to afford treatment, as

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exemplified by this decision from the United States District Court

for the Eastern District of Virginia:

The Fourth Circuit has held that “[a] claimant may not be

penalized for failing to seek treatment [ ]Jhe cannot

afford,” because “‘*[i]Jt flies in the face of the patent

purposes of the . . . Act to deny benefits to someone

. . . too poor to obtain medical treatment that may help

him.’” Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir.

1986) (quoting Gordon v. Schweiker, 725 F.2d 231, 237

(4th Cir. 1984)). However, “Lovejoy and its progeny do

not in any way preclude the ALJ from considering

inconsistencies in the record... .” Riegel v. Colvin,

[No. 7:12CV526,] 2014 WL 462525, at *8 (W.D. Va. Feb. 5,

2014). In Riegel, the plaintiff testified that she did

not seek treatment, because she did not have insurance,

but she continued to smoke cigarettes against medical

advice. Id. The court explained that the ALJ did not

penalize the plaintiff for lacking insurance; rather, the

ALJ penalized her “because of this inconsistency in the

evidence.” Id,

Woodson v. Berryhill, No. 3:17CV347, 2018 WL 4659449, at *18 (E.D.

Va. Aug. 7, 2018) (unpublished), recommendation adopted, 2018 WL

4658681 (E.D. Va. Sept. 27, 2018) (unpublished); see also Arnold v.

Berryhill, No. 3:18CV391, 2019 WL 2883815, at *7 (W.D.N.C. June 12,

2019) (unpublished) (holding that “ALJ did not err” by discounting

the plaintiff’s claim that he “failed to take his prescribed

medication due to an alleged lack of funds,” where “ALJ noted...

that [the p]laintiff could afford two packs of cigarettes per

day”), recommendation adopted sub nom. Arnold v. Saul, 2019 WL

2881548 (W.D.N.C. July 2, 2019) (unpublished) ; Rinaldi □□

Berryhill, No. 2:16CV1403, 2017 WL 4003384, at *4 (D.S.C. Sept. 12,

2017) (unpublished) (“[I]t was not error for the ALJ to consider

the effect of [the p]laintiff’s cigarette habit on her ability to

28

afford treatment.”); Thompson v. Colvin, No. 7:15CV26, 2016 WL

1069654, at *3 (E.D.N.C. Mar. 16, 2016) (unpublished) (finding no

error in ALJ’s consideration of the plaintiff’s ongoing cigarette

purchases despite claiming an inability to afford medication); Hill

v. Colvin, No. 7:14CV171, 2015 WL 5147604, at *6 (E.D.N.C. Aug, 10,

2015) (unpublished) (noting that, “[a] claimant’s use of income to

purchase cigarettes can undercut h[er] allegations that [s]he is

unable to afford treatment”), recommendation adopted, 2015 WL

5164957 (E.D.N.C. Sept. 2, 2015) (unpublished). Thus, Plaintiff

simply has not demonstrated error with respect to the ALJ’s

consideration of Plaintiff’s continued smoking in the face of her

claimed inability to afford treatment and medications.

In short, Plaintiff’s second and last issue on review does not

demonstrate reversible error.

III. CONCLUSION

Plaintiff has not established an error warranting remand.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be affirmed, that Plaintiff’s Motion for

Judgment on the Pleadings (Docket Entry 11) be denied, that

29

Defendant’s Motion for Judgment on the Pleadings (Docket Entry 13)

be granted, and that this action be dismissed with prejudice.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

April 25, 2022

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